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T. Ramabhadran, J.C.

1. These two appeals can be conveniently disposed of by means of one judgment. Misc. First Appeal 22 of 59 arises out of a petition under Section 10 of the Hindu Marriage Act, 1955, instituted by Mt. Padma against her husband, Parma Ram, for judicial separation (case No. 74 instituted in the Court of the Senior Subordinate Judge, Mandi, exercising powers of a District Court under the above Act on 27-5-1958). Misc. First Appeal No. 23 of 59 arises out of a petition under Section 9 (case No. 63 for restitution of conjugal rights) instituted by Parma Ram against Mt. Padma in the same Court on 28-4-1958. The learned Judge granted Parma Ram's petition, but dismissed that of Mt. Padma, by means of his judgments D/-6-2-1959. Aggrieved by these decisions, Mt. Padma has come up in appeal under Section 28 of the Act in both cases. Mt. Padma was married to Parma Ram some years ago and there is a child of the marriage. The marriage was what is known as an exchange marriage, i. e., while Mt. Padma was married to Parma Ram, Parma Ram's sister, Mt. Vidya was married to Saran, brother of Mt. Padma.

5. Arguments of the learned counsel for the parties were heard at considerable length on the 2nd instant. Judgment was reserved till today. For reasons to be stated shortly, I have come to the conclusion that the charges of cruelty, brought by Mt. Padma against her husband, stand substantiated and accordingly both the appeals should be allowed.

6. The following instances of cruelty were cited by Mt Padma: (A) In the month of Magh, 2014, ber brother, Saran, accompanied by three persons, named Durga Datt, Thakur Singh and Kaltu, had gone to Parma Ram's house with a view to take Mt. Vidya, (wife of Saran), to his house. In the presence of the persons mentioned above, Parma Ram suggested to Saran that he should divorce Mt. Vidya. Mt. Padma also requested Saran to divorce Mt. Vidya on the ground that Parma Ram was treating her (Mt. Padma) cruelly on this account. Hearing these words, Parma Ram lost his temper and gave a few slaps on Mt. Padma's face with the result that her nose began to bleed. The spectators patched up the quarrel and washed the blood-stains from Mt. Padma's nose.

As pointed out earlier, the whole conception of cruelty has undergone a vast change during the last 30 years. Cruelty does not mean physical cruelty, i. e. cruelty caused by physical acts of violence.

10. Judged by the above criterion, it seems to me that the charge of cruelty was satisfactorily brought home by Mt. Padma to Parma Ram. Mt. Padma's refusal or inability to persuade her brother, Saran, to divorce Mt. Vidya, in favour of Nokhu, appears to have been the root cause of the trouble.

11. The Court below, in my opinion, has attached undue importance to the unwillingness of Saran to keep Mt Vidya at his house. Saran's explanation was that) Mt. Vidya had contracted a liaison with Nokhu and, therefore, he could not be blamed if he was not prepared to keep Mt. Vidya with him. Under the circumstances, Mt. Vidya's offer or expression of willingness to live with Saran cannot rebut the positive evidence of cruelty adduced by Mt. Padma.

12. As regards the evidence produced by Parma Ram to the effect that he never ill-treated Mt. Padma, I would say that such evidence is of a negative character and cannot rebut the positive evidence of mal-treatment adduced by Mt. Padma and referred to earlier in this judgment.